Keith v. Scales

• Decision Date: 18 April 1899
• Court: North Carolina Supreme Court
• Parties: KEITH. v. SCALES et al.

32 S.E. 809
(124 N.C. 497)

KEITH.
v.
SCALES et al.

Supreme Court of North Carolina.

April 18, 1899.

Wills—Charities—Trusts — Findings — Discretion oe Trustee—Estates.

1. A devise was in trust to the "Moravian Church of S." There was a denomination commonly known as the "Moravian Church, " but officially designated as the "Board of Provincial Elders of the Southern Province of the Moravian Church, " having headquarters at S., and which held the title to all the schools and churches within its jurisdiction. There was also at S. a Moravian church owing allegiance to the province, which controlled no property beyond its vicinity. Held, that this was a latent ambiguity explainable by parol.

2. A finding of the trial court as to which trustee was intended was binding on the heirs.

3. Where an ambiguity in a will is as to the trustee, and not the beneficiaries, equity will not allow the trust to fail for want of a trustee.

4. Where a trustee under a devise in trust for a charitable use is an organization not yet incorporated, the court will hold the fund until incorporation can be effected.

5. A devise in trust to build a church and school is not void because the church and school are not in esse.

6. A devise in trust to a religious society provided for the erection of a church to cost not to exceed a certain sum. Eeld, that the discretion to be exercised was in the trustee.

7. A devise in trust to a church to purchase land, directing that each member of the church, not to exceed 100, should have one acre, is not invalid because to persons incapable of being designated.

8. A provision for the education of children of such members is sufficiently definite, the parents being ascertainable.

9. A devise to a religious society in trust to build a home for a minister and teacher is not void for indefiniteness as to who the teacher should be, as the selection of the teacher would fall on the trustee.

10. A devise was to a religious society to maintain a church and school, and when, if ever, they were abolished, the estate was to go to heirs. Eeld, that the devise was not void as authorizing the trustee to abolish the church and school, the contingency being a condition subsequent, which could not prevent the vesting of the estate.

11. A base or qualified fee is not void in North Carolina.

12. No technical words of conveyance are required in wills.

13. A devise in trust for the maintenance of

[32 S.E. 810]

a church and school is a charity, though it provides that each member of the church be given an acre of land, and his children be educated free at the school.

14. A devise was in trust for a Moravian church and school at S., testator's native town, to be managed and controlled by the Moravian Church of S. Held, that the charity was not void for indefiniteness.

Appeal from superior court, Forsyth county; Allen, Judge.

Action by E. W. Keith, administrator with the will annexed of E. T. Clemmons, deceased, against Mary Scales and others. There was a judgment for plaintiff, and defendants appeal. Affirmed

A. H. Eller and Holton & Alexander, for appellants.

Watson, Buxton & Watson, Jones & Patterson, and W. B. Whltson, for appellee.

CLARK, J. This proceeding is brought by the administrator with the will annexed of E. T. Clemmons against his heirs at law, next of kin and devisees, to have the will proved in solemn form, and for a construction of the same. He died childless. After a devise to his widow, which is eliminated from our consideration by reason of her having dissented, and three small bequests to relatives, which are not contested, the testator devised and bequeathed his estate, estimated at $100,000, as follows: "After the above, then I will and bequeath all the rest of my estate, including my wife's at her death, for a Moravian church and school in my native town, Clemmonsville, Forsyth county, N. C. I desire the Moravian Church of Salem appoint proper persons to purchase one hundred acres of land in or near Clemmonsville; to first erect a substantial church of brick, not to exceed in cost $10,000, a school building not to exceed in cost $10,000, and a comfortable house for the entire use of a Moravian minister and teacher. I desire each member of said church have a lot of one acre of this land purchased at $1.00 each, as far as the land goes, and his children to be sent to school free of charge as long as any part of my estate remains to pay the expenses of said church first, then school. To be managed and controlled by the church of Salem, N. C. It is my intention that all my estate, except as before stated, be used and managed by the Moravian Church of Salem, to maintain a church and school at or near Clemmonsville, N. C, and when, if ever, abolished, then to go to my nearest living relatives." The case having been transferred, upon issues raised by the pleadings, to the superior court, the judge, upon facts agreed, found as a fact that "the Board of Provincial Elders of the Southern Province of the Moravian Church, or Unitas Fratrum, " officially located at Salem, N. C, and a corporation under the laws of North Carolina, was the trustee intended in his will by the designation "Moravian Church of Salem, " and adjudged that the bequest and devise of the residue of the estate as above set forth were valid, and directed that the net pro ceeds of the personalty after payment of the widow's distributive share, the three small bequests mentioned, and the costs of administration, be paid over to said trustee, and that said trustee is the owner and entitled to the possession of all the real estate of which the testator died seised, subject to the dower rights of the widow. From this Judgment the defendants appealed, assigning the following grounds of exception, which will be noted seriatim:

The first two exceptions are to the findings of fact that the "Board of Provincial Elders of the Southern Province of the Moravian Church" was the trustee named. This was shown to be the official designation of the religious denomination commonly known as the "Moravian Church, " with its headquarters at Salem, which is incorporated in North Carolina, and owns large bodies of land, having...